Revenge: A Dish Best Served Online?

By Megan Santiago of The Manely Firm, P.C. posted in Family Law on Wednesday, September 14, 2016.

For those not in the know, revenge porn is the sexually explicit portrayal of one or more people distributed without their consent through any kind of medium. A couple of weeks ago, I watched a Lifetime movie called "Revenge Porn". It was about an eighteen year old high school student who was getting ready to graduate and leave for college. She'd taken some risqué selfies which were saved to her personal computer at home. As par the course in Lifetime movies, things escalated quickly. A hacker broke into her computer, stole the pictures, and then began disseminating them like wildfire. The girl was told not to return to her school, her boyfriend broke up with her, and she lost a college scholarship at a prestigious university. Turns out, the hacker was a former student of the girl's mother, and he was exacting revenge against the girl's mom by going after her daughter and ruining her life.

But for me, it was a side plot that was most intriguing. The girl's mother begins working with other victims of this hacker, who runs a revenge porn website, to put a stop to his antics. One of his other victims is a young mother engaged in a custody battle with her ex-husband. The intimation was that the ex-husband had actually procured and given pornographic videos of the woman and a one night stand to the hacker, who then put him on his website and proceeded to put them all over the woman's social media and broke into her e-mail and e-mailed them to everyone in her contacts list, including her children's daycare. The husband then jumped on it as an opportunity to seize custody of the children.

So, in the usual scheme of modifications of custody, courts look for a substantial change of condition affecting the best interest of the child. A judge has discretion regarding this, and will look for clear and convincing reasonable evidence of the change of condition and how it's impacting the kids. A cursory review of Georgia case law has turned up a few instances where a woman's inappropriate sexual conduct was sufficient to warrant a modification of custody from her to the ex. For example, Georgia courts have held that "a mother's cohabiting with a man who is not her husband, in the presence of the children" as well as "mother's immoral conduct with a married man" were enough to warrant taking her children from her and awarding custody to the children's father. So, given the precedent there, it leads me to wonder if a situation like in the movie could actually happen - a woman's children removed from her custody because of sexually explicit material of her distributed without her consent. Under Georgia laws, the video itself would likely not be admissible as evidence into any kind of hearing (check out my blog post on video evidence). But, given the damage that could result from the widespread distribution of this kind of material to one's children, I could see how a judge may find it's in the kid's best interests for custody to be modified.

All that aside, however, Georgia has been proactive and has created laws expressly applicable to revenge porn. In the past couple of years, Georgia obscenity laws and newer criminal offense laws have helped attack revenge porn. And, really generally speaking, information and evidence obtained illegally is usually never admissible at trial, as I mentioned above. So, revenge porn is illegal and illegal evidence can't come into trial therefore revenge porn can't be used as evidence against you at trial.

What can be, though, is the ripple effect. Losing your job, trauma to your kids... these are big deal factors that may affect your custodial rights. And remember, revenge porn isn't just video captured of you without your consent. Sending nude pictures of yourself to someone, and then the recipient taking those photos and posting them everywhere for the world to see is also considered revenge porn. Now, that's also still actionable under Georgia laws against revenge porn, however YOU sending photos or videos of yourself is directly under your control and avoidable. So, what's the moral of the story here? Don't send naked photos of yourself to anyone and be aware of your surroundings and who you engage in consensual activities with. Immediately report to the police any revenge porn that you feel is using your likeness, and be aware of the widespread impact it could have on your children. The internet is ubiquitous - perhaps a ubiquitous game.

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